David Doniger

C. Clark

ELY- One of the lawyers who worked on the case that became known as the foundation for the so-called “Chevron doctrine” spoke in Ely last week about its recent demise at the hands of the U.S. Supreme Court.
David Doniger argued the original case, Chevron v. Natural Resources Defense Council, before the Supreme Court back in 1984. Doniger’s local presentation, “Agencies and Judges: After Chevron, What’s Next?” was hosted by the Ely Climate Group on Aug. 13.
The Chevron ruling hinged on the view by the 1980s high court that when a federal statute is ambiguous, a federal agency’s reasonable interpretation of the law requires deference from the courts. At the time, it was a 6-0 victory for Chevron, as two justices were ill during arguments and another justice was recused.
The view expressed by the high court went on to be cited as clear precedent in over 18,000 subsequent cases throughout the federal judiciary. While the decision, which came during the Reagan administration, was originally seen as a conservative victory, conservatives turned against it in more recent years as Democrats have begun to consistently win the White House, which has considerable influence over the direction of the federal agencies.
With an overwhelming conservative majority now on the high court, the justices used the case known as Loper Bright Enterprises v. Raimondo to overturn the Chevron doctrine.

The Chevron doctrine
The 1984 lawsuit hinged on an interpretation of the Clean Air Act of 1963 and a new interpretation of a “pollution source” by the Reagan administration. The Environmental Protection Agency had initially defined a pollution source as any significant change or addition to a plant or factory, like a new boiler or generator. Reagan’s EPA sought to change that.
Doniger explained: “Congress in 1977 had passed amendments creating an enhanced program for pollution controls on sources that were going to be built in the most polluted cities. What did the Reagan administration do? They changed the definition of a source so that it exempted about 90 percent of the objects that otherwise would have been subject to these pollution control requirements.”
The EPA issued a new interpretation in 1981 that allowed an entire factory or plant to be considered a source. The revised definition allowed companies to skip the EPA new-source review process if the pollution introduced by a change was balanced by emission cuts of equal magnitude elsewhere in a facility.  
In 1982, the Natural Resources Defense Council petitioned the D.C. court of appeals to challenge the legality of the administration’s new definition of source.
As a young lawyer working on the case, Doniger related what happened next: “We sued. We won in the court of appeals in Washington D.C. That decision was written by Ruth Bader Ginsburg when she was still on that court. But it was a screwy decision.”
In Ginsburg’s decision, the appellate court found that the EPA’s new interpretation of “source” conflicted with interpretations in prior court cases, ruling that the new interpretation was thereby invalid.
Doniger outlined two previous cases that dealt with the definition of source: “The way the D.C. circuit court works is you draw a three-judge panel randomly. (In) each of these cases, we got different three-judge panels… The first one ruled, as we thought it should, that the term was super clear and couldn’t be evaded in this way, striking down a regulation that the Ford administration had issued that tried to do that.
“The second case came up during the Carter administration. The judges were more conservative (in this case). Those judges said … it’s okay to have the lenient definition, because the particular program (challenged in the lawsuit) was not intended to reduce pollution, but only to limit how much worse it got.”
Chevron didn’t like the appellate court’s decision and appealed it, which led to the Supreme Court’s 1984 opinion.

Neutral doctrine
Doniger argued that the Chevron doctrine was a neutral principle that cut both ways. “Environmentalists lost as many cases under the Chevron doctrine … You could see more progressive administrations trying to interpret ambiguity to allow for doing more, whereas the Republican administrations would try to interpret the ambiguity as a basis for doing less or nothing at all. I just want to get across that it’s a neutral doctrine, and it empowered whichever administration was in power.
“Initially, the Chevron doctrine got the plaudits of conservative scholars and justice judges,” Doniger said. But they later soured on the principle when they discovered that the Clinton and Obama administrations could use the doctrine for more progressive objectives. The new conservatives were “people funded by the Koch brothers network and the network of right-wing billionaires.”
Eventually, with prompting and financial backing from the Koch brothers, conservatives recast the Chevron doctrine as supportive of big government that restricted the liberty of individuals.
“Neil Gorsuch is actually a very, very strong exponent of this view,” said Doniger. “He’s just written a new book about how we have too many laws, and … it should be hard to pass laws and issue regulations because they restrict the liberty of those who are regulated.”
Doniger took issue with that view. “My answer is: what about the liberty of the people who are affected by the conduct that Congress intended to address — the people whose liberty, life, and health is damaged by air pollution, or cut short by air pollution or water pollution, the people who are hurt by defective products that the Consumer Product Safety Commission is supposed to make sure are safe?”

Loper Bright
To take overturn the Chevron doctrine, conservatives shopped for a sympathetic small business to front a lawsuit. That’s because a small business is a more sympathetic plaintiff than a big business like Chevron. They found two small commercial fishermen and sued over the requirement that they must pay for the federal fisheries inspectors who ride on their boats.
The Magnuson–Stevens Fishery Conservation and Management Act, which regulates fisheries, is silent on who should pay for federal fishery inspectors. The lawyers for fishing company Loper Bright Enterprises argued to the Supreme Court “that the law is silent,” and silence doesn’t empower the agency. “It’s not as though the law said the National Marine Fisheries Service shall have the authority to require boat owners to pay if, in the judgment of the administrator, that’s the right thing to do. The law doesn’t say that. It’s just silent. They also said that the Chevron doctrine is just terrible because judges should be deciding these questions of law. They’re not policy questions that should be left to agencies. The court bought this argument.”

Post-Chevron doctrine
Doniger explained the new standard contained in Chief Justice Roberts’ opinion on the Loper Bright case: “In deciding these questions of law, you should pay attention to what the agency thinks… that long-standing interpretation by an expert agency is entitled to respect, but not deference. In other words, (agency interpretation) would inform your view, but the judge is still the one who decides if it’s right or wrong.”
Doniger noted that the danger introduced by the Loper Bright decision, “which is judges having personal predilections, policy predilections, and inserting those into his or her interpretation of the law.”
Doniger predicted the Loper Bright decision has already emboldened new challenges to federal regulations in the courts: “Whenever you change the law, whenever you do that, you destabilize something which was pretty well understood and stable for 40 years. The lower courts are going to go all over the place in determining what that means.”
Doniger also noted that the lawsuits have already sprung up “like popcorn” to challenge federal regulations under the new standard. “It’s already happening. I’m told that there are already 40 or 50 decisions from lower courts citing this new ruling from the Loper Bright case, and we were going to have to rely on the appellate courts and the Supreme Court just to sort it out.”